Bombay High Court
Goa Port And Dock Employees' Union vs Government Of India And Ors. on 17 August, 1990
Equivalent citations: 1991(1)BOMCR349, (1991)93BOMLR360
JUDGMENT S.W. Puranik, J.
1. In this writ petition, the scheme of The Major Port trusts Act, 1963 (hereinafter referred to as ' the Act') in respect of constitution of the Board of Trustees as envisaged by Chapter II of the said Act falls for consideration with particular emphasis on the manner of appointing trustees, who in the opinion of the Central Government, are capable of representing the interest of labour employed in the Port.
2. The consideration of the above aspect arises in the following facts and circumstances: -
The petitioner is Goa Port and Dock Employees Union while the respondent No. 4 is the Mormugao Port and Railway Workers Union. Both are registered Trade Unions. Both these Trade Unions represent substantive portion of the labour employed in the Port of Mormugao.
3. Under the Act, the Board of Trustees of a major port shall consist of such number of persons as the Central Government may by Notification from time to time specify. amongst those persons to be appointed as trustees, the government shall also appoint persons who are, in its opinion, capable of representing the interest of labour employed in the Port. It is further provided that before appointing such persons to represent such labour in the Port, the Central Government shall obtain the opinion of the Trade Unions, if any, composed of persons employed in the port and registered under the Trade Unions Act, 1926. It is in these circumstances that the petitioner's Union and the respondent No. 4's Union have interest in their representatives being on the Board of Trustees.
4. Chapter II of the act deals with the Board of Trustees and Committees thereof. It comprises of sections 3 to 22. Section 3 of the Act prescribed the constitution of the Board of Trustees. It prescribes that the Central Government shall cause to be constituted in respect of any major Port, a Board of Trustees to be called the Board of Trustees of the port which shall consist of : (1) a chairman (to be appointed by the central Government); (2) a Deputy Chairman (if the Central Government deems fit to appoint one); (3) not more than nineteen persons in the case of ports at Bombay, Calcutta and Madras and not more than seventeen persons in the case of any other port; and further that these persons shall consist of such number of persons as the Central Government may from time to time by Notification in the Official Gazette specify to be appointed by that Government from amongst the persons who are in its opinion capable of representing any one or more of such of the following interests, namely :-
(1) labour employed in the port;
(2) ..... ..... .....
(7) ..... ..... .....
provided that before appointed any person to represent any labour employed in the port, the Central Government shall obtain the opinion of the Trade Unions, etc.
5. It is, therefore, obvious that under section 3, the Board has to consist of a Chairman and a Deputy Chairman who are to be appointed by the Central Government and the Central Government also has to appoint nineteen members on the Board in the case of ports at Bombay, Calcutta and Madras and not more than seventeen persons for the other major ports. It is further obvious that their appointment has to be done by the Central Government who are, in its opinion, capable of representing any one or more of such interests as enumerated above. Lastly, as per the proviso it is made clear that in respect of appointing any person to represent the labour employed in the port, the Central Government must necessarily consult the Trade Unions, if any, composed of persons employed in the port and duly registered under the Trade Unions Act. Lastly, it also specifies that the number of representatives of the labour on the Board of Trustees shall not be less than two.
6. It is not disputed that the Mormugao port is a major port and the said Act. applies to the same. It is also undisputed that the petitioner and the respondent No. 4 are the two major Trade Unions composed of persons employed in the Port of Mormugao and both are duly registered under the Trade Unions Act.
7. Under section 7 of the said Act, the term of office of the Chairman and the Deputy Chairman of Board of Trustees is to hold office during the pleasure of the Central Government. In other words, there is no fixed term for the chairman and the Deputy Chairman of the Board of Trustees while under sub-clause (2) of section 7, every person elected or appointed by name to be a Trustee, shall hold office to which he is elected or appointed for a term of two years commencing on the first day of April next following his election of appointment as the case may be; provided that the term of office of a member elected to represent a body of persons shall come to an end as soon as he ceases to be a member of the body.
8. Section 10(2) provides that in the case of a vacancy in the office of a trustee appointed by name or an elected trustee, caused by expiration of the term of office of such person, the appointment to fill such vacancy shall be made or election to fill such vacancy shall be completed within two months immediately preceding the date of expiration of such term. The first proviso to section 10 stipulates that the trustee so appointed or elected shall retain his office so long only as the vacating trustee shall have retained the same, if such vacancy had not occurred.
9. The above provisions explain the scheme of appointment of certain members to the Board of Trustees. It is clear from the term of office specified in section 7 and the requirement under section 10(1) to fill up the vacancy within two months of occurrence of a vacancy of an appointed Trustee indicates that the same must be filled in every two years and if for some reason or the other a vacancy arises during the periods of the two-year term, the same shall be re-filled expeditiously within a period of two months. The intention of the Legislature is obvious in that it requires that the essential representations of the various interests specified in section 3(1)(i) shall always be there on the Board of Trustees.
10. Thus, as we are concerned with the question of representation of the labour employed in the Port, it must be held that the Central Government must form its opinion as to who is best capable of representing the interests of the labour employed in the Port only after consulting the Trade Unions duly registered under the Act which comprise of the persons employed in the Port. It is further obvious that the number of persons so appointed shall not be less than two. These appointments are always for a period of two years unless a vacancy arises during the term. In the case of such vacancy, the same has to be filled up expeditiously within two months.
11. As regards the Port of Mormugao, the Board of Trustees is appointed from first April of the year for a period of two years. The Board of Trustees comprises of two trustees representing the interest of the labour as has been specified by the Government.
12. It is the case of the petitioner that Shri S.K. Shetye, the petitioner's nominee was appointed to the Board of Trustees of the Major Port of Mormugao as one of the persons capable of representing the labour employed in the Port in the years 1982, 1984, 1986 and 1988 for the period of two years each from first April of that year while the second person appointed to the Board as the person capable of representing the labour employed in the port of Mormugao was S.R. Kulkarni, a nominee of the other Trade Union respondent No. 4.
13. It is also not disputed that the Board of Trustees representing the labour are appointed on the first of April of every even year on the basis of the verification of the subscribed membership of the trade Unions, namely, the petitioner and the respondent No. 4 at Mormugao on the 31st December of the previous even year. Thus, for the year 1st April, 1986, the strength of the labour in the membership of a Trade Union as on December, 1984 will be taken into consideration and for the year 1990, the strength of the labour Union as on 31st December, 1988 shall be taken into consideration.
14. The Central Government by its affidavit in-reply has clearly admitted this position that every two years, the ascertainment of the strength of registered membership of every Trade Union is undertaken and completed by December of that year so as to enable the Government to form its opinion as to the person best capable of representing the interest of the labour employed in the Port of Mormugao.
15. It is also an undisputed position as disclosed by the affidavit of the Central Government that where there are more than one Trade Unions, the two labour representatives on the Board of Trustees are to be determined in a particular manner under the Nanda formula. It appears that because it was difficult to formulate an opinion as to these rival strengths of various Unions at a particular Port, the Central Government appointed a one-man Commission presided by Shri Nanda. The said commission was to suggest ways and means how to formulate an opinion regarding the number of representatives to be taken from various Unions where only two representatives are to be taken on the Board of Trustees. Thus, the commission placed before the Central Government a formula to ensure a balanced and requitable distribution to the various Trade Unions and which was based on the membership of individual Unions at the Port. Under the said formula, where the number of persons to be appointed on the Board is two, both appointments are made from the nominees of the Trade Union having the largest membership of the labour employed in the port provided it is not less than 60% of the combined strength in terms of the verified membership of all the Trade Unions; and provided further that the membership of the trade Union with the next largest membership is less than 50% of the Trade Union with the largest membership; provided further that in the event the next largest membership is more than 50% then, one representative shall be from the membership with the largest strength while the other representative shall be from the next Trade Union with more than 50% strength.
16. It appears that in the year 1988 when the Board of trustees was to be formed, the figures of 31st December, 1986 in respect of the membership strength of the Union were taken for consideration. There were complaints that the said verification was not properly done. The petitioner also learnt that there was likelihood of an action for removal of their representative from the board in view of the verification report of 1986. However, the petitioner's Union raised a dispute regarding the verification done as on 31st December, 1986, which culminated into an inquiry. It appears that the report of the inquiry was not disclosed to the petitioners or to the labour workers and the petitioner's representative continued in office as a Trustee for a full term upto March, 1990.
17. As already stated above, the fresh appointments are to be made on the Board of Trustees from amongst the persons capable of representing the labour. The manner in which this opinion is formed is already stated above. To that end and purpose the central Government initiated action well in advance by June, 1989, to find from the two rival Unions as to the registered membership strength of each Union. Accordingly, figures were submitted to the concerned authorities. However, the verification of the membership strength of the Trade Unions was not complete even upto the end of 31st March, 1990. Inspite of that, an order came to be passed by Government Notification No. GSR 430(E) dated 31-3-1990. The new Board of Trustees was constituted comprising of several members amongst whom are the respondent No.2 S.R. Kulkarni comprising of several members whom are the respondent No. 3 A.J. Peters as representing the labour employed in the Port of Mormugao, both being representatives of respondent No. 4 to the exclusion of petitioner's Union.
18. The petitioners feel aggrieved by the appointment of respondents Nos. 2 and 3 on the Board of Trustees inasmuch as according to the petitioner's Union, their registered membership strength is sufficiently large and, at any rate, they are having more than 50% strength in their membership than the strength of the respondent No. 4's Union. They also feel aggrieved by the fact that as per the aim and object of section 3 of the Act, the proper person best capable of representing the interests of labour employed in the Port is not seen on the Board of Trustees appointed by the impugned Notification. It is in these circumstances that they have filed this writ petition with the main relief seeking a Writ of certiorari quashing the said Notification GSR 430 (E) dated 31-3-1990 insofar as it purports to appoint respondents Nos. 2 and 3 as Trustees on the Boards of Trustees at the Port of Mormugao.
19. Shri Kakodkar, the learned Counsel appearing for the petitioners, on the basis of the facts as averred in the petition as also from the facts disclosed from the affidavit-in-reply filed on behalf of the Central government stated that now it is an admitted position that the appointment of the two labour representation trustees made by the impugned Notification was made not on the basis of figures of December, 1988, but on the last available figures, i.e. of December, 1986. He further brought to our notice the fact that even the reply-affidavit of the Government shows that the 1986 figures were not above board but that there were discrepancies. On these facts, therefore, he submitted that if the figures of 1988 were not available, it was open for the Government to take advantage of the provisions of section 11 of the said act which permits certain appointment to be done subsequent to the formation of the new Board if for some reason the Government is unable to fill in the vacancies. That is to say, if there was any genuine difficulty for some bona fide reason, the Government ought not to have appointed the respondents Nos. 2 and 3 to the Board of Trustees and could have waited for the figures of December 1988 to be available. Even otherwise, according to Mr. Kakodkar, the appointments effected on the basis of disputed figures of 1986 are also contrary to the very intention of the Legislature and, certainly, the order impugned insofar as the appointment of respondents Nos. 2 and 3 is concerned is void ab initio. He also argued that the formula evolved by the Government for verification and ascertainment of the strength of various Trade Unions and their representation every two years is significant and indicates that the very latest figures ought to form the basis of appointment of labour representatives on the Board. He also criticised the laxity on the part of the Government in collecting the final figures regarding the membership strength of the Union at the Port. But at the same time the laxity on the part of its machinery to collect the correct figures will not give a licence to the Government to appoint anybody to the Board of Trustees as labour representating the interest of the labour. Accordingly, he criticised the impugned Order as not only void, illegal and contrary to the provisions of the chapter II but also as mala fide and obnoxious.
20. Shri Nadkarni, the learned senior counsel appearing for the Port Trust, respondent No. 5, very fairly submitted at the outset that the Board of Trustees are not interested either in favour of the petitioner's Union or in favour of the respondent No. 4's Union. The respondent No. 5 is only interested in assisting this court as regards the question whether the method adopted by the Union of India and the practice followed by it in relying upon the last available figures is correct or erroneous or void. According to Mr. Nadkarni, the only question which will have to be addressed is whether the impugned order to void ab initio as contended by the petitioners or whether if at all it is merely erroneous. He submitted that section 11 which provides that the Government need not make the appointment if for any reason the vacancy cannot be filled in is merely an enabling provision. It may allow the Government to await for some time for the ascertained figures of December, 1988 but that does not mean that the Government is precluded from exercising its opinion and power to appoint the trustees on the basis of the figures as are available. According to him, in order that the representatives of the interests of the labour should be on the Board of Trustees, the government has not erred in passing its opinion on the last available figures of 1986 and even if the figures may be discrepant, at best, it may be erroneous order which need not be interfered with by this Court in its writ jurisdiction. even otherwise, he said that such orders are, in fact, permitted by the provisions of section 20(b) of the Act.
21. He next pointed out that shortly after the impugned notification was issued on 31st march, 1990, sometime in the middle of April, 1990, the figures of the respective strength of the Union became available to the government, and thereafter, the Central Government has issued a show cause notice under section 8(1)(aa) to the respondent No. 3 as to why his name should not be removed from the Board of Trustees in view of the latest figures. Thus, there has been no mala fides according to Shri Nadkarni on the part of the Central Government and the writ need not be issued as prayed. He however suggested that this court may issue suitable recommendations to the Government for the manner and methodology of appointment in future.
22. Shri Dias, Counsel for respondent No. 3, opposed the petition. According to him, the nanda formula is merely a guideline which the central Government has secured for itself to aid and assist in the formulation of its opinion for appointment of trustees. according to him, this has been voluntarily by the State eventhough the Statue gives full discretion to the central Government to form its own opinion to find as to the person best capable of representing the interest of the labour. relying on the Barium chemicals' v. Company Law Board case, and The Commissioner of Income-tax v. Mahindra Ltd. case, , he submitted that the order passed by the Central Government (the impugned Notification) is a purely administrative order passed by the Government in its own discretion as authorised by section 3 of the Act and in that event, the same would not become justifiable before this court. In the alternative, he submitted that the appointment of the two trustees, respondents Nos. 2 and 3 for the term 1990 to 1992 based on the last available figures of 1986 is not so unreasonable that it needs to be interdered with. According to him, it would not be an illegality and only if at all, it is an erroneous order. In any event, the respondent No. 3 is bound to show cause to the notice issued and the Central government will decide in terms of the norms usually followed, urges Mr. Dias.
23. Shri Bhobe, the learned Additional Government Pleader appearing for the Central Government, respondent No. 1, agreed with these submissions made on behalf of the board of Trustees as well as of respondent No. 3. He submitted that the impugned Notification of 31-3-1990 which is based on figures of December, 1986, cannot be termed as an illegal action or arbitrary or mala fide. He submitted that in order to facilitate the formation of the opinion, the Central Government suo motu assesses the number of subscribed members of each Union every two years, eventhough this authority is not stipulated in the Act or under the nanda Formula. According to him, the contention of the petitioners that the 1986 figures are disputed is not at all correct. According to him, the discrepancy, if any, was in the figures regarding Dock workers and not regarding Port workers. He pointed out that under section 3, the appointment is of the person capable of representing the interest of the labour employed in the Port. He also pointed out that the Port and the dock are two different things and since there was no discrepancy as regards the strength of Port workers, the appointment made on the basis of 1986 undisputed figures of Port workers is not illegal or erroneous. Lastly, he pointed out that no sooner the figures of 1988 December became available, the government has bona fidely taken action under section 8(1)(aa) and show cause notice has also been issued to respondent No. 3 why he should not be removed from the Board. In these circumstances, Shri Bhobe submitted that the order impugned is not liable to be interfered with.
24. We have narrated the facts and circumstances which have given rise to this petition. We have also narrated above, in brief, the submissions of the respective parties. In order to resolve the controversy, we find that it is necessary to answer the basic question whether the impugned order is such which comes purely under the administrative discretion of the Government, or whether, in certain circumstances, the same is justifiable in this Court. Undisputably, it is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to, or has been arrived at by the authority by misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters, the Court would be justified in interfering with the same. This is the ratio of the decision in Barium chemicals' v. Company Law Board case, . The parameters of the Court's powers of jurisdiction and review of administrative or executive action or decision on the grounds on which the Court can interfere with the same are well settled. In another case, in the matter of Smt. Shalini Soni v. Union of India, , it was observed:-
" It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, escrewing the irrelevant and the remote."
In the authoritative book entitled 'Judicial Review of Administrative Action' (4th Edition), which is a Treatise of Prof. de Smith, at page 285, the following principles are formulated:-
"Principles Governing the Exercise of Discretionary Powers.
The relevant principles formulated by the courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in may particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it : it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts. These several principles can conveniently be grouped in two main categories : failure to exercise discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fattered because irrelevant considerations have been taken into account; and where an authority hands over its discretion to another body it acts ultra vires. Nor, as will be shown, is it possible to differentiate with provision the grounds of invalidity contained within each category."
The Supreme Court in another decision Commissioner of Income-tax v. Mahindra & Mahindra Ltd., , the decision of in Barium Chemicals' case and in Shalini Soni's case, (cited supra), as also the observations of Prof. de Smithi's Treastise on 'Judicial Review of Administrative Action' have been quoted with approval. In fact, the order of the Bombay High Court setting aside an administrative discretionary order of the Income tax Commissioner was challenged by the Income-tax Commissioner, Bombay, before the Supreme Court and by the said decision, the Supreme Court held that the administrative order passed by the Income-tax Commissioner was arbitrary and unjust and was justiciable before the Court. The Supreme Court confirmed the judgment of the High Court and dismissed the appeal.
25. Bearing in mind the above principles, we will look to the scheme of Chapter II insofar as it relates to the appointment of the representatives of the labour employed in the Port to the Board of Trustees. Section 3(1)(i), no doubt, gives any indication that the appointment of the representative of the various interests stated thereunder has to be done by the opinion of the Central Government. In other words, it purports to indicate that the order appointing representatives of various interests is a discretionary order of the Central Government but if we have a look at the section closely, it is seen that there is hardly an discretion left in the Central Government by the very section of the statute. The very opinion clause of section 3(1) states that the Board shall consist of the following trustees :
(a) a Chariman to be appointed by the Central Government;
(b) a Deputy Chairman, if the Central Government deems fit to appoint one;
(c) not more than nineteen persons in the case of each of the ports of Bombay, Calcutta and Madras and not more than seventeen persons in the case of any other port who shall consist of-
(i) such number of persons, as the Central Government may, from time to time, by notification in the Official Gazette, specify, to be appointed by that Government from amongst persons who are in its opinion capable of representing any one or more of such of the following interests as may be specified in the notification, namely:-
(1) labour employed in the port;
(2) the Mercantile Marine Department; (3) the Customs Department;
(4) the Government of the State in which the port is situated: (5) the Defence Service;
(6) the Indian Railways; and (7) such other interests as, in the opinion of the Central Government, ought to be represented on the Board.
The Central Government shall cause to be constituted a Board of Trustees for a major port and that such Board shall consist of above persons. Therefore, sub-clauses (a), (b) and (c) of section 3(1) name and describe the trustees who shall be appointed by the Central Government. Sub-clause (c) further stipulates the number of the trustees appointed by the Central Government. Thus, it is clear that the Central Government shall cause to be appointed a Board of Trustees which shall be constituted of the named authorities and shall consist of a specified number of trustees. If we go to section 3(1)(i), we find that it only specifies the interest from which the seventeen or nineteen trustees are to be appointed by the Central Government. Therefore, the field of interest from which the representatives shall be taken on the Board of Trustees is also stipulated in the section. Lastly, insofar as the persons capable of representing the interests of the labour employed in the Port are concerned, there is a proviso which further stipulates a condition that the Central Government, before such appointment, shall obtain the opinion of the Trade Union. Therefore, the formation of the opinion by the Central Government is not a purely administrative discretion but is fettered with several restrictions and even after consulting the Trade Unions which must be registered Trade Unions, the number of such persons to be appointed shall not be less than two. Thus, the decision to be taken by the Government is not a random discretion that is authorised by the Statute but a discretion which is fittered with obligations. Therefore, if from the facts and circumstances which are undisputed it is seen that the opinion formed by the Government is based on the material which is impermissible under the scheme of the Act or is based on irrelevant or stale considerations, is no opinion at all. Even in the limited scrutiny that may be available to the Court insofar as administrative discretionary orders are concerned, it would be enough ground to hold that the order based on such opinion is arbitrary, illegal and void. Reference may be made to the decisions reported in M.A. Rasheed v. State of Kerala, , Hochtief Gammon v. State of Orissa, and Official Liquidator v. Dharti Dhan (P) Ltd., .
26. As already pointed above, the word 'opinion' as is used in section 3(1)(c)(i) is used in a very limited sense and that is only to the extent of finding out persons capable of representing the labour after obtaining the opinion from the Trade Unions, if any. It must, therefore, be based on relevant considerations to advance the aim and object of the Statute and must be formed without any arbitrariness or the ipse dixit of the appointed authorities. In the instant case, the Central Government has taken two major decisions in its administrative function to facilitate the Central Government to formulate the opinion insofar as the appointments of representatives of labour are concerned. As submitted by the learned Government Pleader Shri Bhobe, the Central Government has evolved the Nanda Formula for deciding the two representatives from the two large Unions that may be present in a Port. He has also drawn our attention to the fact that the Government every two years gets the assessment of the strength of the respective registered Unions which figures then form the basis of the decision-making authority for appointment of the representatives of the labour from amongst the two Unions. These two steps in our opinion indicate that the Central Government has acted in a right direction to logically and bona fidely formulate its opinion as to the persons best capable of representing the interests of the labour. If that, be so, then, the Government ought to follow it in its own logic. It has been well said 'he that takes the procedural sword shall perish with that sword'. In the present case, the Government has evolved a particular procedure to form its opinion which will be not arbitrary or not baseless and it will not be on irrelevant or stale considerations. Looking to the provisions of section 7 of the Act, it is seen that besides the Chairman and the Deputy Chairman of the Board of Trustees who hold office during the pleasure of the Central Government, the other trustees who are elected or appointed are appointed for a term of two years commencing on the first day of April next following his election or appointment. It is, therefore, clear that every two years, the representatives of the labour working in the Port have to be appointed. It is mainly for this purpose that every two years, the Central Government is carrying out the assessment to ascertain the strength of the respective Trade Unions. The labours force in any given Organization or in the Port is a flexible commodity and they may divert their loyalty from one Union to the other over a course of time. Therefore, in a Port where there are more than one Trade Unions having substantive strength, it is necessary to ascertain their respective strength at the relevant time when the new appointments for the trustees are to be made for the future two years. At the outset, we would like to state that if the appointments are to be made around first April of given year, it should not be difficult for the Central Government to assess and ascertain the membership strength of the Unions in the month of December of the previous year. For reasons, however, best known to the Central Government, they are ascertaining the strength as prevalent in December of the year preceding the year i.e. about one and a half years prior to the date of appointment. Yet however, since the capacity of the Government Department and the time required for the assessment of the respective strength has not been stated before us, we are unable to find out what difficulties the Government may be facing. At any rate, none of the parties have challenged that such ascertainment is bad in view of the scheme of the Act. We, therefore, consider and presume that this method is the accepted method of ascertaining the latest figures for the appointment of a current Board of Trustees. The anxiety to have the representative immediately is also indicated by section 10 which says that if during the term of office or at the expiration of the term of office, there is a vacancy in the Board, the same shall be filled in by appointment or election within the two months of such vacancy. The intention is explicit that the labour working in the Port must be represented on the Board of Trustees at the earliest. Further, such filling up of vacancies is only for the remaining period of the term. This expresses the intention of the Legislature that in any event, when the regular term expires, new trustees should be appointed with a fresh opinion to be formed by the Central Government on consideration of relevant factors. This must be because of the fluid state of the labour shifting loyalty from one Union to another. All these aspects, therefore, in our opinion, expressly lay down that the opinion to be formed by the Central Government at the time of appointing a representative must be based on the very proximate figures of the labour strength of the various Trade Unions. It cannot, therefore, go back to the earlier years to find our what was the strength over four years or six years ago. In the present case, the 1990 appointment which is to last till 1992, has been based on the figures of 1986. We fail to understand as to why section 11, the saving clause was not invoked by the Central Government, if for any reason it was not possible for the Central Government to make the appointment within the prescribed period. It would have been only just and valid thing to do in the event the figures were not available. As the facts disclose, the figures became available only 15 days after the impugned Notification. In our opinion, sections 3, 7, 10 as also section 11 clearly indicate a mandate to the Central Government to appoint representatives of the labour with the latest figures available in respect of the Union's strength.
27. If it is the say of the Government that because of certain reasons or defaults on the part of their administrative machinery, they could to obtain the figures of the membership strength of the Union for December, 1988, yet they cannot, thereafter, submit to show bona fides on their part by basing their opinion on the stale figures of 1986.
28. Even otherwise, we find that the figures of 1986 were admittedly discrepant. It is admitted by the Central Government by its affidavit-in-reply filed by Shri S.K. Dargan, Desk Officer, Ministry of Surface Transport, New Delhi. This affidavit commences at page 55 of the Paper-book and in paragraph 7 at page 61, state as follows:-
".....However, it was noted in this verification report as on 31-12-1986 that there was large discrepancy between the verified membership and actual strength of dock workers. This was pointed out to Ministry of Labour. The Ministry of Labour stated in April, 1989 that the difference between the total number of registered dock workers and verified membership for dock workers was on account of Verification Officer not having ratified the membership of a large number of workers...."
In that event, the decision based on the admitted discrepant figures of 1986 is totally arbitrary and illegal.
29. It was tried to be argued on behalf of the Government that even if the figures of Dock workers were discrepant, the figures of the Port workers were not discrepant, and as such, the appointment could be based on the figures of Port workers. This argument is based on the wording of section 3(1)(i)(1) where it is stated 'laboured employed in the Port'. We are unable to appreciate this line of argument. Section 2(q) of the Act defines "Port" and which means a major port and which may be defined by the Central Government for the purpose of the Act by a Notification in the Official Gazette and until then within such limits as may have been defined by the Central Government under the provisions of the Indian Ports Act. We have before us the Notification of the Ministry of Transport, New Delhi, dated 16th November, 1963, whereby Port of Mormugao and its extension has been declared. The Mormugao area, it is an admitted position, now extend well beyond the shore line of the entire town itself and must certainly cover the dock which is essential and integral part of any Port. Therefore, eventhough the intricate definition of 'dock' is also given in section 2(f), it does not make any difference to the broader meaning which is given to the word 'port'. As known from all the lexicons, dictionaries and encyclopaedias, the 'dock' is only an integral part of a harbour or a port. The argument of the learned Government Pleader in that direction, therefore, is not at all sustainable.
30. The only other contention was that in the absence of the figures of December 1988, the Government has bona fidely accepted the figures last available, namely, those of 1986, and hence, the order is not mala fide and should not be interfered with. We have already observed that the order suffers from total non-application of mind, firstly, in considering the discrepant figures of 1986 as a basis, and secondly, in proceeding to decide in the absence of latest figures of 1988. Even otherwise, if the Government totally misdirects itself while taking a decision in its administrative capacity, then, even though such decision may have been taken bona fidely, the same would be liable to be struck down if it is against the very spirit and letter of the law which gives that discretion to the Government. Reference may be made to M.A. Rasheed v. State of Kerala, , wherein Chief Justice A.N. Ray has observed thus :-
"There is no principle or authority in support of the view that whenever a public authority is invested with power to make an order which prejudicially affects the rights of an individual whatever may be the nature of the power exercised, wherever may be the procedure prescribed and whatever may be the nature of the authority conferred, the proceedings of the public authority must be regulated by the analogy of rules governing judicial determination of disputed questions.
..........
Administrative decisions in exercise of powers even if conferred in subjective terms are to be made in good faith on relevant consideration. The courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the facts in a material respect. The standard of reasonableness to which the administrative body is required to conform may range from the courts' own opinion of what is reasonable to the criterion of what a reasonable body might have decided. The courts will find out whether conditions precedent to the formation of the opinion have a factural basis."
31. In the facts and circumstances of the present case and in view of the scheme of appointment of two trustees who, in the opinion of the Central Government, are best capable of representing the interests of the labour as envisaged in Chapter II, sections 3, 7, 10 and 11 of the Act, we find that the impugned order is unjust, illegal and void ab initio. It is based not on relevant considerations, and therefore, suffers from the vice of arbitrariness. We have, therefore, no hesitation to allow the petition though, of course, not as prayed for.
32. It was urged that the Government, as on the figures of December 1988 made available subsequently, issued a show cause notice under section 8(1)(aa) to the respondent No. 3. However, we find that the said exercise is not called for in view of the fact that the order as challenged was void ab initio. The provisions of section 8 would come into play only if the initial appointment is valid and legal, and subsequently, the trustee ceased to represent the labour. The present is not one such case. Hence, we need not discuss the steps taken by the Central Government under section 8(1)(aa).
33. In the affidavit filled on behalf of the Ministry of Surface Transport by its Desk Officer, the total verified membership figures of Port workers in Mormugao Port as on 31-12-1988 are 3632, out of which the verified membership of the petitioner's Union is 1635 and that of Mormugao Port and Railway Workers' Union, the respondent No. 4, is 1937. On the application of Nanda Formula, there is no alternative but to appoint one representative of each of these Unions. For this reason, the appointment of Shri S.R. Kulkarni stands as being the representative on behalf of Mormugao Port and Railway Workers' Union, the respondent No. 4. The appointment of shri A.J. Peters, respondent No. 3, is therefore, set aside and, instead, shri S.K. Shetye which is mentioned to be the choice of the petitioner's Union, is directed to be appointed on the Board of Trustees of the Mormugao Port Trust, as being the representative of that Union.
34. In the final result, therefore, the petition succeeds to the extent indicated. Rule partly absolute accordingly in terms of prayer clauses (a) and (b). There shall however be no order as to costs.